Citation Nr: 1612012 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 08-00 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased rating for coronary artery disease status post stent placement and coronary artery bypass, rated 30 percent disabling from January 26, 2004, and 60 percent disabling from December 21, 2005. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active service from June 1962 to June 1970. This matter came before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which assigned a 30 percent rating to coronary artery disease, effective December 21, 2005. In a December 2006 rating decision, the RO assigned a temporary 100 percent disability rating, effective December 8, 2006, and assigned a 30 percent rating, effective April 1, 2007. This matter was remanded in December 2011, June 2014, and August 2015. In an October 2015 rating decision, the RO assigned a 30 percent rating, effective January 26, 2004, and assigned a 60 percent rating, effective December 21, 2005. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. For the period from January 26, 2004 to November 27, 2005, the Veteran's coronary artery disease has not been shown to have been manifested by more than one episode of acute congestive heart failure in the past year; nor workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; nor is there a showing of left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 2. For the period from November 28, 2005 to December 7, 2006, and from April 1, 2007, the Veteran's coronary artery disease has not been shown to be manifested by chronic congestive heart failure; nor is there a showing of workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; nor left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. For the period from January 26, 2004 to November 27, 2005, the criteria for a schedular rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7005 (2015). 2. For the period from November 28, 2005 to December 20, 2005, the criteria for a schedular rating of 60 percent for coronary artery disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7005 (2015). 3. For the period from November 28, 2005 to December 7, 2006, and from April 1, 2007, the criteria for a schedular rating in excess of 60 percent for coronary artery disease status post stent placement and coronary artery bypass have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7005 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the United States Court of Appeals for Veterans Claims (Court) continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In April 2004, January 2006, March 2006, and July 2007, VCAA letters were sent to the Veteran with regard to his increased rating claim. Collectively, the letters notified the Veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter has clearly advised the Veteran of the evidence necessary to substantiate his claim. A decision from the Court provided additional guidance on the content of the notice that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increase compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a veteran of alternative diagnostic codes or potential "daily life' evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, notice was issued to the Veteran in June 2008 in compliance with Vazquez. VA has complied with all assistance requirements of VCAA. The evidence of record contains the Veteran's VA treatment records; and records from the Social Security Administration (SSA). There is no indication of relevant, outstanding records which would support the Veteran's claim discussed below. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran has been afforded VA examinations pertaining to his coronary artery disease which will be discussed below. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Increased rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's coronary artery disease has been rated 30 percent disabling pursuant to Diagnostic Code 7017, coronary bypass surgery, from January 26, 2004 to December 20, 2005; and, 60 percent disabling from December 21, 2005 to December 7, 2006, and from April 1, 2007. Under Diagnostic Code 7017, a 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent; a 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent; and, a 30 percent rating is warranted for a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electro-cardiogram, echocardiogram, or X-ray. January 26, 2004 to December 20, 2005 From January 26, 2004 to November 27, 2005, a disability rating in excess of 30 percent is not warranted based on the evidence of record. The Board, however, finds that a 60 percent disability rating is warranted from November 28, 2005 to December 20, 2005. On evaluation in March 2004, there was a normal distribution of activity on both the stress and resting studies. The review of the myocardial wall motion showed normal wall motion and myocardial thickening. Left ventricular ejection fraction was 62 percent. The study was normal and there was no evidence of stress-induced ischemia. 01/27/2006 VBMS entry, Medical Treatment Record - Government Facility (#1) at 23. An August 2004 VA examination references a March 2004 stress test which showed an ejection fraction of 62 percent and a normal study. His METs were 7. A chest x-ray showed a normal heart size. A cardiac examination was normal without murmurs, rubs or gallops. The Veteran reported being able to complete household chores, including cutting the grass, and carrying groceries up a flight of stairs. 08/06/2004 VBMS entry, VA Examination. A February 2005 x-ray examination of the chest showed stable chest radiographs with no acute cardiopulmonary disease. 01/27/2006 VBMS entry, Medical Treatment Record - Government Facility (#1) at 8. In February 2005, the left ventricular ejection fraction was 63 percent. Id. at 9. An October 2005 Persantine Myocardial Perfusion Spect study showed small reversible inferior wall perfusion defect towards the base. Review of the myocardial wall motion showed mildly decreased thickening and hypokinesis in this area. The left ventricular ejection fraction was 58 percent. 01/27/2006 VBMS entry, Medical Treatment Record (#1) - Government Facility at 1; 01/27/2006 VBMS entry, Medical Treatment Record (#2) at 53. When compared with the prior March 2004 study, there was no change. On January 5, 2006, the Veteran had a stent placement. It was indicated that he had been having progressively worsening shortness of breath. Diagnostic catheterization was performed, which showed new stenosis in the proximal and distal edges of a 2003 stent. 01/27/2006 VBMS entry, Medical Treatment Record (#2) at 23. Such procedure occurred after the Veteran sought emergency room treatment on December 28, 2005 complaining of a history of progressive shortness of breath, more shortness of breath with exertion. He reported that such symptoms had been present for one month. 01/27/2006 VBMS entry, Medical Treatment Record (#2) at 31. A March 2006 VA examination reflects that the Veteran had a stent placement in January 2006 following symptoms of shortness of breath and generalized weakness. He reported progressively worsening shortness of breath for which he was referred after a recent stress test showed a new reversible inferobasal wall defect. Diagnostic catheterization revealed new stenosis in the proximal and distal edges of a previous placed stent from 2003. Following placement of the stent in January 2006, he reported continuing to feel weak and lacked energy, compared with feeling better after placement of the original stent. The estimated fracture was 58 percent and his estimated METs was 5. 03/31/2006 VBMS entry, VA Examination. Based on the objective findings contained in the December 2005 and January 2006 VA treatment records, the Board finds that the Veteran's condition had worsened as of November 28, 2005. As detailed, the Veteran sought emergency room treatment on December 28, 2005 complaining of symptoms for a one month period and a new stent was placed approximately a week later. Objective findings contained in the March 2006 VA examination report reflect METs of 5, thus warranting a 60 percent rating. Affording the Veteran reasonable doubt, the Board finds that a 60 percent rating is warranted from November 28, 2005, which corresponds to a one-month period prior to seeking emergency medical treatment. Prior to this date, the objective medical evidence does not support that a 60 percent rating is warranted. On evaluation in October 2005 and prior to this, the medical evidence of record does not reflect that there had not been more than one episode of acute congestive heart failure in the past year, nor a workload of 5 METs or less, nor a LVEF of 30 to 50 percent. November 28, 2005 to December 7, 2006, and from April 1, 2007 A disability rating in excess of 60 percent is not warranted for the period from November 28, 2005 to December 7, 2006, and from April 1, 2007. Initially, the Board notes that none of the treatment records on file nor VA examination reports reflect chronic congestive heart failure. Likewise, none of the evaluations have reflected 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; nor, left ventricular dysfunction with an ejection fracture of less than 30 percent. An October 2007 VA examination references a July 2007 stress test with Persantine, which showed a small perfusion deficit with normal wall motion and 52 percent ejection fraction which rose to 60 percent. 10/29/2007 VBMS entry, VA Examination. A June 2008 VA examination reflects left ventricular ejection fraction of 53 percent. 06/14/2008 VBMS entry, VA Examination. An August 2013 echocardiogram showed a left ventricular dysfunction with an ejection fraction of 60 percent. METs was 7. 07/21/2014 VBMS entry, C&P Exam. The October 2015 VA examination reflects METs between 3-5, found to be consistent with activities such as light yard work, mowing lawn, and brisk walking. 10/22/2015 VBMS entry, CAPRI. Myocardial perfusion scan performed in December 2014 showed normal wall thickening and wall motion with a left ventricular dysfunction with an ejection fraction of 58 percent and right ventricle dilation. Stress echo was completed in October 2015 which demonstrated METs level of 4.6. EKG revealed no significant cardiac arrhythmia and no ST-T wave abnormalities during the stress test. Ejection fraction was estimated between 55-60 percent. Additional considerations The disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, there has been no showing that the Veteran's disability picture for his disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. The June 2008 VA examination report reflects that the Veteran has not worked since prior to 2006 and coronary artery bypass grafting. Both the July 2014 and October 2015 VA examiners checked the 'No' box with regard to whether the Veteran's coronary artery disease impacts his ability to work. At this juncture, the Veteran has not raised the issue of entitlement to a total disability rating due to individual unemployability (TDIU) as a result of his service-connected disabilities, nor has any evidence been submitted in support of a claim for a TDIU; thus, this issue will not be addressed at this time. (CONTINUED ON NEXT PAGE) ORDER For the period from January 26, 2004 to November 27, 2005, entitlement to a disability rating in excess of 30 percent for coronary artery disease is denied. For the period from November 28, 2005 to December 20, 2005, entitlement to a disability rating of 60 percent for coronary artery disease is granted. For the period from December 21, 2005, to December 7, 2006, and from April 1, 2007 entitlement to a disability rating in excess of 60 percent for coronary artery disease is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs